Did DA violate gag order?

June 26, 2003 

A judge is not likely to order a contempt of court hearing for Stanislaus County District Attorney James Brazelton this morning, legal experts predict.

Defense attorney Mark Geragos has asked Judge Al Girolami to hold Brazelton in contempt for violating a gag order in the double-murder case against Scott Peterson, who is accused of killing his wife, Laci, and unborn son, Conner.

If that happens, Brazelton could get a reprimand, be fined or even spend a day behind bars. But experts said the chance of censure is slim.

"Judges generally don't hold prosecutors in contempt," said Bennett Gershman, a former New York City prosecutor who teaches at Pace University Law School and has written textbooks about prosecutorial misconduct.

"It sounds like the type of violation that the judge won't find to be in contempt," said George Bird, a certified criminal law specialist and defense attorney in Torrance.

Girolami two weeks ago forbade attorneys on both sides from discussing evidence in the case. He also could rule today on another defense motion to lift the gag order.

Brazelton last week told The Bee he wants to take the case to a preliminary hearing, rather than to a grand jury where he could lay out his evidence behind closed doors.

He said the move is needed to because leaks to the media and speculation on television talk shows force prosecutors to "spend all our time running down this phony baloney stuff they throw up."

In court papers, Geragos said the comments are "nothing less than outrageous."

But it will be up to the judge to decide if Brazelton was merely talking about the process or flouting his order by talking about the evidence.

"It's not a clear, unequivocal, unambiguous reference to the evidence in violation of the judge's order," Gershman said.

The California Bar Association doesn't keep statistics on contempt of court findings, but will investigate if attorneys are held in contempt for ethical violations. Brazelton has no public record of discipline.

The defense also has alleged "grave prosecutorial misconduct" in the interception of 71 phone calls in a wiretap, because three calls between Scott Peterson and his attorney were re-corded.

Prosecutorial misconduct includes things such as mishandling evidence, making inflammatory remarks in the presence of the jury or having a bias against a defendant or the defendant's attorney.

A report to be released today by the Center for Public Integ-rity said appellate judges dismissed charges, reversed convictions or reduced sentences because of prosecutorial misconduct in 2,017 cases since 1970.

The Washington, D.C., watchdog group spent three years reviewing 11,450 appellate court cases in which prosecutorial misconduct was raised as an issue.

In 513 cases, at least one appellate judge said the alleged misconduct merited further discussion or reversal. In the other cases, the convictions were upheld, the report says.

Several other motions in the Peterson case are set for hearing as well, including:

  • Geragos asked the court to sanction attorney Gloria Allred, because she appeared on a television talk show only hours after the gag order was issued. Allred represents potential prosecution witness Amber Frey, who admitted having a relationship with Peterson.

  • Geragos asked the court to lift the gag order, saying it leaves the defense team powerless to counter negative comments about their client. Attorneys for The Bee and other news agencies also have asked the court to lift the order. They said reporting will continue, including the rehashing of gossip and leaks, even if an order is in place.

  • Geragos asked a judge to remove the district attorney's office from the case, for allegedly bungling the wiretap investigation. He also wants evidence gained through eavesdropping between Jan. 10 and April 18 excluded from trial.

  • Prosecutors asked the judge to seal a post-arrest search warrant, saying release of information in the document would jeopardize Peterson's chance of getting a fair trial. Media lawyers oppose the move, saying a fear of pretrial publicity doesn't justify keeping records that are normally made public under seal.

    And a possible delay in the preliminary hearing, now scheduled for July 16, will be discussed.

    Bee staff writer Susan Herendeen can be reached at 578-2338 or sherendeen@modbee.com.

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